TERMS AND CONDITIONS
Last updated: July 15, 2023
BY SIGNING AN ORDER FORM OR USING THE SERVICES (INCLUDING ANY FREE TRIALS) OR CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE USING THE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A COMPANY, CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THIS AGREEMENT,AND YOU REPRESENT AND WARRANT THAT YOU HAVE SUCH AUTHORITY.
These Terms and Conditions are entered into between Aircover Inc., a Delaware corporation (“Aircover”) and the entity or person signing an Order Form or accessing the Services (“Customer” or “you”). Collectively, all applicable Order Forms, these Terms and Conditions, and all attachments hereto shall be deemed the “Agreement”. The “Effective Date” of this Agreement is the date specified on the applicable Order Form or the date you first accessed the Services, as applicable.
1.1 As used in this Agreement, the “Services” shall mean the Aircover product or service described on the applicable Order Form. The “Services” shall exclude the Customer Content and Non-Aircover Services.
1.2 The“Order Form” shall mean the ordering document, online or otherwise, specifying the Services to be provided hereunder.
1.3 Subject to the terms of this Agreement, Aircover will use commercially reasonable efforts to provide access and support to the Services in accordance with any usage restrictions set forth in the applicable Order Form. Notwithstanding the foregoing, Aircover reserves the right to suspend Customer’s access to theServices for scheduled or emergency maintenance or in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Aircover.
1.4 Subject to the terms of this Agreement, Aircover will use commercially reasonable efforts to provide the professional services as set forth in an Order Form (the“Professional Services”).
2. NON-AIRCOVER SERVICES
Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (including, without limitation, Zoom) (“Non-Aircover Services”). Aircover is not responsible for the operation of any Non-Aircover Service nor the availability or operation of the Services to the extent such availability and operation is dependent upon Non-Aircover Services. Customer is solely responsible for procuring any and all rights necessary for it to access Non-Aircover Services and for complying with any applicable terms or conditions thereof. Aircover does not make any representations or warranties with respect to Non-Aircover Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely betweenCustomer and such third party provider and is governed by such third party’s terms and conditions. Aircover may suspend Customer’s access to the Services for any breach of any Non-Aircover Service.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on theServices or Software; use the Services or Software for time sharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
3.2 Customer will cooperate with Aircover in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as Aircover may reasonably request. Customer will also cooperate with Aircover in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
3.3 Customer hereby agrees to indemnify and hold harmless Aircover against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Aircover has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Aircover may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or withoutCustomer’s knowledge or consent.
3.5 Customer acknowledges that the timely provision of and access to equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, employees and partners, are essential to performance of the Services and that Aircover’s obligation to complete any Services is dependent upon same.Neither party will be liable to the other for any delay or failure to perform that is due to causes beyond the reasonable control of said party. Customer’s failure to timely perform any of its obligations under this Agreement or an Order Form shall relieve Aircover of its dependent obligations to the full extent of such Customer delay.
4. CUSTOMER CONTENT
Customer may submit to Aircover data, content, materials, and documents through the Services or otherwise in connection with the Services (collectively, the “Customer Content”). As between the parties, Customer owns all right, title and interest in and to the Customer Content. Aircover may use the Customer Content to perform the Services (or cause the Services to be performed). Customer represents and warrants that (i) neither the Customer Content nor its use in the Services will infringe, misappropriate or violate any intellectual property rights or other rights or agreements; and (ii) Customer has the proper rights and authority to enter into this Agreement and to grant Aircover the rights set forth under this Agreement. If Aircover receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or violate rights of a third party, Aircover may (but is not required to) suspend activity hereunder with respect to that CustomerContent.
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business(herein after referred to as “Proprietary Information” of the Disclosing Party).
5.2 TheReceiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of suchProprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from theDisclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in thisAgreement will prevent the Receiving Party from disclosing the ProprietaryInformation pursuant to any judicial or governmental order, provided that theReceiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
5.3 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority(provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Except as expressly set forth herein, as between the parties, Aircover will retain all intellectual property rights relating to the Services, the Software, theProfessional Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the foregoing. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Professional Services or the Software, or any intellectual property rights.
6.2 Aircover shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret. As a condition to these indemnification obligations, Customer shall promptly notify Aircover of any and all threats, claims and proceedings related thereto and give Aircover reasonable assistance and sole control over defense and settlement. Aircover will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Aircover, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Aircover, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Aircover from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Aircover’s indemnity obligation by the preceding sentence.
7. PAYMENT OF FEES
7.1 Customer will pay Aircover the applicable fees as set forth on theOrder Form (the “Fees”).
7.2 Customer shall provide Aircover with valid and updated credit card information. Customer authorizes Aircover to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth inSection 8 (Term and Termination; Free Trial). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Aircover will invoice Customer in advance and otherwise in accordance with the relevant Order Form. If not otherwise specified in the Order Form, payments will be due within thirty (30)days of invoice and are nonrefundable.
7.3 The prices stated in this Agreement do not include any federal, state, local or foreign taxes, withholdings, duties, tariffs, levies or similar assessments on the license, delivery or use of theServices, Software or Professional Services. Customer agrees to pay all such charges and not to reduce any payment to Aircover as a result thereof. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any government. If Customer claims exemption from any tax, then it shall furnish Aircover with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
7.4 Unpaid Fees are subject to a finance charge of one percent (1.0%)per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
8. TERM AND TERMINATION; FREE TRIAL
8.1 Subject to earlier termination as provided below, this Agreement is for the Term as specified in the Order Form.
8.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
All accrued rights to payment and Sections 2, 3, 4, 5, 6, this Section 8.4, 9, 10, 11,12 and 13 of this Agreement shall survive termination or expiration of this Agreement.
9. WARRANTY DISCLAIMER
THE SOFTWARE,SERVICES, PROFESSIONAL SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. AIRCOVER(AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ANDNON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES,SOFTWARE, PROFESSIONAL SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS ORLOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF AIRCOVER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF AIRCOVER, WHETHER BASED IN CONTRACT, TORT(INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, INTHE AGGREGATE, THE FEES PAID TO AIRCOVER HEREUNDER IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
All notices under this Agreement will be in writing (a) for notices to Aircover to PO Box 1192 San Mateo, CA 94403 and (b) for notices to Customer, to the address set forth in the Order Form, or in each case, at such other address as may be given in writing by either party to the other in accordance with this Section 11, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. If any provision of thisAgreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. ThisAgreement is not assignable, transferable or sub licensable by Customer except with Aircover’s prior written consent. Aircover may freely transfer and assign any of its rights and obligations under this Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Aircover in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Aircover will not be liable for any loss resulting from a cause over which it does not have direct control.